(PC) Nieves v. Allison et al, No. 1:2022cv01020 - Document 30 (E.D. Cal. 2024)
Court Description: ORDER ADOPTING 22 Findings and Recommendations and Dismissing Action, with Prejudice, for Failure to State a Claim Upon which Relief can be Granted, signed by District Judge Kirk E. Sherriff on 11/25/2024. CASE CLOSED. (Maldonado, C)
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(PC) Nieves v. Allison et al Doc. 30 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 Case No.: 1:21-cv-01020-KES-CDB (PC) SANDI NIEVES, Plaintiff, v. KATHLEEN ALLISON, et al., Defendants. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED Doc. 22 16 17 Plaintiff Sandi Nieves is proceeding pro se and in forma pauperis in this civil rights action 18 brought pursuant to 42 U.S.C. § 1983. This matter was referred to a United States magistrate 19 judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On September 13, 2023, the assigned magistrate judge issued findings and 21 recommendations recommending that this action be dismissed for Plaintiff’s failure to state a 22 claim upon which relief could be granted. Doc. 22. The findings and recommendations were 23 served on Plaintiff and contained notice that any objections were to be filed within fourteen (14) 24 days of service. Id. at 12. On September 21, 2023, Plaintiff requested an extension of time to 25 file objections. Doc. 23. The magistrate judge granted Plaintiff an extension of thirty days in 26 which to file objections. Doc. 24. Plaintiff filed her objections on October 20, 2023. Doc. 25. 27 28 In accordance with the provisions of 28 U.S.C. § 636(b)(1), the Court has conducted a de novo review of this case. In her objections, Plaintiff asserts that she seeks a settlement of her Dockets.Justia.com 1 claims, and she objects to the court’s previous instruction that she pay the filing fee and requests 2 either a stay or waiver of the filing fee, but she does not meaningfully address the findings and 3 recommendations. See Doc. 25. Here, Plaintiff was previously granted an opportunity the cure 4 the defects in her complaint but failed to do so in the first amended complaint. Thus, dismissal of 5 Plaintiff’s case is appropriate and mandatory. Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 6 2000) (“It is clear that section 1915(e) not only permits but requires a district court to dismiss an 7 in forma pauperis complaint that fails to state a claim.”). 8 9 Having carefully reviewed the entire file, including Plaintiff’s objections, the Court finds the findings and recommendations to be supported by the record and proper analysis. 10 Accordingly, it is ORDERED that: 11 1. 12 13 ADOPTED IN FULL; 2. 14 15 The findings and recommendations issued on September 13, 2023 (Doc. 22) are Plaintiff’s first amended complaint is DISMISSED, with prejudice, for failure to state a claim upon which relief can be granted; and 3. 16 The Clerk of the Court is directed to terminate all pending motions and to CLOSE this case. 17 18 19 20 IT IS SO ORDERED. Dated: November 25, 2024 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 2
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